Employment Bill: What now for workers’ rights?

Creating Covid-secure workplaces and facilitating a safe return will be the initial priority post pandemic, but this may change.

A big surprise in this year’s Queen’s Speech was the omission of the long-awaited Employment Bill. What does this mean for employment rights as we emerge from the pandemic? Russell Dann outlines recent developments and issues to watch out for.

As the UK economy hopefully moves out of restrictions and into recovery mode, there has been a lot of commentary on the omission of the long-anticipated Employment Bill from the Queen’s Speech.

One of the biggest proposed changes expected from the Bill was the right for workers on zero-hours arrangements to request a more predictable contract that more accurately reflected the hours they actually work.

Any employer refusing to change the contract would have to justify its decision and workers would have the right to challenge that decision at an employment tribunal.

Doing so could help the levelling-up agenda. More women, young people, people from areas of higher levels of deprivation and those from ethnic minority backgrounds have either lost stable employment in retail and hospitality, or already work in sectors where zero hours contracts are standard.

Providing these workers with evidence of a stable income to show landlords and mortgage lenders could make a real difference to their lives and employers would benefit from a stable and loyal workforce.

Gig economy rights

In terms of defining workers’ rights in the gig economy, the Supreme Court has stepped in to protect vulnerable workers with its judgment that Uber drivers are entitled to rights such as holiday pay and the national minimum wage.

Uber has also now concluded a recognition agreement with the GMB union, reflecting a trend towards more organisations offering all workers fundamental employment rights.

Another measure that might have been in the Bill was to make flexible working the default position. That was before the term “hybrid working” came into widespread use.
Now many, if not most, employers with office-based staff are preparing to bring them back for a few days of the week with the rest working from home, this is not an area that needs extra burdensome legislation.

New protections

In assessing the state of employment rights in the UK, it is equally important to look beyond the shelved Bill and to take into account new protections that have been introduced. The issue attracting the most attention is probably ‘fire and rehire’.

The circumstances faced by the employer and the changes made to terms will determine whether it is an abuse of the employer’s power or a reasonable reorganisation. Those calling for a ban on termination and re-engagement have been silent out the arguably likely consequence, which would be more dismissals without re-engagement.

Some of the coverage of “fire and rehire” omits the current (and entirely correct) protections that apply when an employer terminates employees’ contracts and re-engages them on less generous terms and conditions.

Employees with two years’ service can claim unfair dismissal, and where employers dismiss and re-engage 20 or more employees, they also risk protective awards of up to 90 days’ pay per employee if they do not meet their collective consultation obligations.

But there are also very legitimate reasons for termination and re-engagement, especially in current circumstances, for example where employers have had to change rotas for Covid safety measures.

Health and safety

The pandemic has quite rightly brought workplace health and safety to greater prominence, and there is one significant protection that previously applied only to those with “employee” status that has now been extended to cover all workers.

With effect from 31 May 2021, workers are protected from detriment as a result of taking steps to protect themselves or others in certain health and safety situations, including where “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably be expected to avert, he left or … (while the danger persisted) refused to return to his place of work”. Detriment here would include non-payment for non-attendance at work.

In law, to an unvaccinated person at least, the danger from coronavirus could still be classified as serious or imminent.

The key question then is whether the employee’s belief is reasonable. It is less likely to be considered reasonable if the employer has fulfilled its obligations under government guidance to reduce workplace risk to the “lowest reasonably practicable level”.

A blatant disregard of health and safety by an employer is an issue, but not where the employer has taken measures and ensures they are followed by the workforce.”

But what if the employee in their general life is taking risks, as daily life is about managing the Covid risk? A blatant disregard of health and safety by an employer is an issue, but not where the employer has taken measures and ensures those are followed by the workforce, accepting some human failings.

However, challenges may come from employees who believe that the current Public Health England pilot scheme permitting contacts of positive cases to attend work, albeit after a negative daily lateral flow test, does not meet this obligation.

Employers will need to bear this in mind when considering workplace protocols as the economy begins to reopen, at least until the majority of adults have been fully vaccinated. They will also need to consider the risk of the new B.1617.2 variant, particularly for those individuals who have not received both doses of the vaccine.

Government will need to support businesses in this with clear guidance so that workers, businesses and the economic recovery are suitably protected.

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Russell Dann

About Russell Dann

Russell Dann is an associate at Clarkslegal
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